waste

Waste

Harmful or destructive use of real property by one in rightful possession of the property.

Waste is an unreasonable or improper use of land by an individual in rightful possession of the land. A party with an interest in a parcel of land may file a civil action based on waste committed by an individual who also has an interest in the land. Such disputes may arise between life tenants and remainderpersons and landlords and tenants. The lawsuit may seek an Injunction to stop the waste, damages for the waste, or both. Actions based on waste ordinarily arise when an owner of land takes exception to the manner in which the possessor or tenant is using the land.

The four common types of waste are voluntary, permissive, ameliorating, and equitable waste. Voluntary waste is the willful destruction or carrying away of something attached to the property. In an action for voluntary waste, the plaintiff must show that the waste was caused by an affirmative act of the tenant. Such waste might occur if a life tenant (a person who possesses the land for his lifetime, after which a remainderperson takes possession) chops down all the trees on the occupied land and sells them as lumber.

Voluntary waste will also occur, for example, if the tenant of an apartment removes kitchen appliances that are attached to the apartment floors and walls. More commonly, the tenant breaks a window, damages walls or woodwork, or otherwise damages the apartment. Landlords typically protect against this type of voluntary waste by requiring a damage or security deposit from the tenant at the commencement of the lease. When the tenant vacates the apartment, the landlord inspects for waste. If the apartment has been damaged, the landlord will use part or all of the deposit for repairs. If the damage exceeds the deposit, however, the landlord may file an action seeking damages for the repairs not covered by the deposit.

Permissive waste is an injury caused by an omission, rather than an affirmative act, on the part of the tenant. This type of waste might occur, for example, if a tenant permits a house to fall into disrepair by not making reasonable maintenance repairs.

Ameliorating waste is an alteration in the physical characteristics of the premises by an unauthorized act of the tenant that increases the value of the property. For example, a tenant might make improvements that increase the value of the property, such as remodeling a bathroom. Generally, a tenant is not held liable if she commits this type of waste.

Equitable waste is a harm to the reversionary interest in land that is inconsistent with fruitful use. This Cause of Action is recognized only by courts of Equity and is not regarded as legal waste in courts of law. For example, if the life tenant begins to cut down immature trees, the remainderperson, who will someday take possession of the property, may file an action in equity seeking an injunction to stop the cutting. The remainderperson would argue that the cutting imperils the productive use of the land in the future, because the value of the land after the immature trees have been cut would be decreased.

In an action for waste, a plaintiff commonly will seek damages for acts that have already occurred and request an injunction against future acts. A court will order an injunction if it finds that irreparable harm will occur and that the legal remedy would be inadequate, unless otherwise provided by statute. Certain laws provide for temporary relief if acts of waste are either threatened or committed.

The ordinary measure of damages for waste is the diminution in value of the property to the nonpossessor as a result of the acts of the possessor. This is frequently difficult to measure, particularly in situations where a significant period of time will elapse before the plaintiff is entitled to actual possession.

Cross-references

waste

n. 1) any damage to real property by a tenant which lessens its value to the landlord, owner or future owner. An owner can sue for damages for waste, terminate a lease of one committing waste, and/or obtain an injunction against further waste. 2) garbage, which may include poisonous effluents.

WASTE. A spoil or destruction houses, gardens, trees, or other corporeal
hereditaments, to the disherison of him that hath the remainder or reversion
in fee simple or fee tail 2 Bl. Comm. 281.
2. The doctrine of waste is somewhat different in this country from
what it is in England. It is adapted to our circumstances. 3 Yeates, R. 261;
4 Kent, Com. 76; Walk. Intr. 278; 7 John. Rep. 227; 2 Hayw. R. 339; 2 Hayw.
R. 110; 6 Munf. R. 134; 1 Rand. Rep. 258; 6 Yerg. Rep. 334. Waste is either
voluntary or permissive.
3.-Sec. 1. Voluntary waste. A voluntary waste is an act of commission,
as tearing down a house. This kind of waste is committed in houses, in
timber, and in land. It is committed in houses by removing wainscots,
floors, benches, furnaces, window-glass, windows, doors, shelves, and other
things once fixed to the freehold, although they may have been erected by
the lessee himself, unless they were erected for the purposes of trade. See
Fixtures; Bac. Ab. Waste, C 6. And this kind of waste may take place not
only in pulling down houses, or parts of them, but also in changing their
forms; as, if the tenant pull down a house and erect a new one in the place,
whether it be larger or smaller than the first; 2 Roll. Ab. 815, 1. 33; or
convert a parlor into a stable; or a grist-mill into a fulling-mill; 2 Roll.
Abr. 814, 815; or turn two rooms into one. 2 Roll. Ab. 815, 1. 37. The
building of a house where there was none before is said to be a waste; Co.
Litt. 53, a; and taking it down after it is built, is a waste. Com. Dig.
Waste, D 2. It is a general rule that when a lessee has annexed anything to
the freehold during the term, and afterwards takes it away, it is waste. 3
East, 51. This principle is established in the French law. Lois des Bit.
part. 2,
3, art. 1; 18 Toull. n. 457.
4. But at a very early period several exceptions were attempted to be
made to this rule, which were at last effectually engrafted upon it in favor
of trade, and of those vessels and utensils, which are immediately
subservient to the purposes of trade. Ibid.
5. This relaxation of the old rule has taken place between two
descriptions of persons; that is, between the landlord and tenant, and
between the tenant for life or tenant in tail and the remainder-man or
reversioner.
6. As between the landlord and tenant it is now the law, that if the
lessee annex any chattel to the house for the purpose of his trade, he may
disunite it during the continuance of his interest, 1 H. B. 258. But this
relation extends only to erections for the purposes of trade.
7. It has been decided that a tenant for years may remove cider-mills,
ornamental marble chimney pieces, wainscots fixed only by screws, and such
like. 2 Bl. Com. 281, note by Chitty. A tenant of a farm cannot remove
buildings which he has erected for the purposes of husbandry, and the better
enjoyment of the profits of the land, though he thereby leaves the premises
the same as when he entered. 2 East, 88; 3 East, 51; 6 Johns., Rep. 5; 7
Mass. Rep. 433.
8. Voluntary waste may be committed on timber, and in the country from
which we have borrowed our laws, the law is very strict. In Pennsylvania,
however, and many of the other states, the law has applied itself to our
situation, and those acts which in England would amount to waste, are not so
accounted here. Stark. Ev. part 4, p. 1667, n.; 3 Yeates, 251. Where wild
and uncultivated land, wholly covered with wood and timber, is leased, the
lessee may fell a part of the wood and timber, so as to fit the land for
cultivation, without being liable to waste, but he cannot cut down the whole
so as permanently to injure the inheritance. And to what extent the wood and
timber on such land may be cut down without waste, is a question of fact for
the jury under the direction of the court. 7 Johns. R. 227. The tenant may
cut down trees for the reparation of the houses, fences, hedges, stiles,
gates, and the like; Co. Litt. 53, b; and for mixing and repairing all
instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c.
Wood's Inst. 344. The tenant may, when he is unrestrained by the terms of
his lease, out down timber, if there be not enough dead timber. Com. Dig
Waste, D 5; F. N. B. 59 M. Where the tenant, by the conditions of his lease,
is entitled to cut down timber, he is restrained nevertheless from cutting
down ornamental trees, or those planted for shelter; 6 Ves. 419; or to
exclude objects from sight. 16 Ves. 375.
9. Windfalls are the property of the landlord, for whatever is severed
by inevitable necessity, as by a tempest, or by a trespasser, and by wrong,
belongs to him who has the inheritance. 3 P. Wms. 268; 11 Rep. 81, Bac. Abr.
Waste, D 2.
10. Waste is frequently committed on cultivated fields, orchards,
gardens, meadows, and the like. It is proper here to remark that there is an
implied covenant or agreement on the part of the lessee to use a farm in a
husbandman-like manner, and not to exhaust the soil by neglectful or
improper tillage. 5 T. R. 373. See 6 Ves. 328. It is therefore waste to
convert arable to woodland and the contrary, or meadow to arable; or meadow
to orchard. Co. Lit. 53, b. Cutting down fruit trees; 2 Roll. Abr. 817, l.
30; although planted by the tenant himself, is waste; and it was held to be
waste for an outgoing tenant of garden ground to plough up strawberry beds
which be had bought of a former tenant when he entered. i Camp. 227.
11. It is a general rule that when lands are leased on which there are
open mines of metal or coal or pits of gravel, lime, clay, brick, earth,
stone, and the like, the tenant may dig out of such mines, or pits. Com.
Dig. Waste, D 4. But he cannot open any new mines or pits without being
guilty of waste Co. Lit. 53 b; and carrying away the soil, is waste. Com.
Dig. Waste, D 4.
12.-Sec. 2. Permissive waste. Permissive waste in houses is punishable
where the tenant is expressly bound to repair, or where he is so bound on an
implied covenant. See 2 Esp. R. 590; 1 Esp. Rep. 277; Bac. Abr. Covenant, F.
It is waste if the tenant suffer a house leased to him to remain uncovered
so long that the rafters or other timbers of the house become rotten, unless
the house was uncovered when the tenant took possession. Com. Dig. Waste, D
2.
13.-Sec. 3. Of remedies for waste. The ancient writ of waste has been
superseded. It is usual to bring case in the nature of waste instead of the
action of waste, as well for permissive as voluntary waste.
14. Some decisions have made it doubtful whether an action on the case
for permissive waste can be maintained against any tenant for years. See 1
New Rep. 290; 4 Taunt. 764; 7 Taunt. 392; S. C. 1 Moore, 100; 1 Saund. 323,
a, n. i. Even where the lessee covenants not to do waste, the lessor has his
election to bring either an action on the case, or of, covenant, against the
lessee for waste done by him during the term. 2 Bl. Rep. 1111; 2 Saund. 252,
c. n. In an action on the case in the nature of waste, the plaintiff
recovers only damages for the waste.
15. The latter action has this advantage over an action of waste, that
it may be brought by him in reversion or remainder for life or years, as
well as in fee or in tail; and the plaintiff is entitled to costs in this
action, which he cannot have in an action of waste., 2 Saund. 252, n. See,
on the subject in general, Woodf. Landl. & T. 217, ch. 9, s. 1; Bac. Abr.
Waste; Vin. Abr. Waste; Com. Dig. Waste; Supp. to Ves. jr. 50, 325, 441; 1
Vern. R. 23, n.; 2 Saund. 252, a, n. 7, 259, n. 11; Arch. Civ. Pl. 495; 2
Sell. Pr. 234; 3 Bl. Com. 180, note by Chitty; Amer. Dig. Waste; Whart. Dig.
Waste; Bouv. Inst. Index, h.t.
As to remedies against waste by injunction, see 1 Vern. R. 23, n.; 5 P.
Wms. 268, n. F; 1 Eq. Cas. Ab. 400; 6 Ves. 787, 107, 419; 8 Ves. 70; 16 Ves.
375; 2 Swanst. 251; 3 Madd. 498; Jacob's R. 70; Drew. on Inj. part 2, c. 1,
p. 134. As between tenants in common, 5 Taunt. 24; 19 Ves. 159; 16 Ves. 132;
3 Bro. C. C. 622; 2 Dick. 667; Bouv. Inst. Index, h.t.; and the article
Injunction. As to remedy by writ of estrepement to prevent waste, see
Estrepement; Woodf Landl. & T. 447; 2 Yeates, 281; 4 Smith's Laws of Penn.
89; 3 Bl. Com. 226. As to remedies in cases of fraud in committing waste,
see Hov. Fr. ch. 7, p. 226 to 238.

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